Cases and authorities

CRIMINAL LAW - application for inquiry into conviction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) - photo identification evidence - no special facts or special circumstances raised - identification of seized items - no sense of unease or disquiet required raised - application dismissed

PROCEDURE - personal injury litigation - causation - whether injuries arose from compensable accident or from genetic disorder - medical testing - whether order should be made for genetic testing - effect of testing on hearing date - whether legal representatives for defendants should be permitted to speak to plaintiff's specialist - whether radiologist's opinion involves doctor-patient confidentiality

CRIMINAL LAW - appeal against conviction - miscarriage of justice - competence of counsel - instructions to cross-examine complainant that she had fabricated allegations the accused had expressed a sexual interest in children - further instructions that allegations true after prosecution sought to subpoena accused's medical records - whether the cross-examination was an available forensic strategy - whether failing to seek a discharge of the jury gave rise to a miscarriage of justice - whether evidence of communication between counsel and accused properly revealed CRIMINAL LAW - Crown appeal against sentence - offender convicted of multiple counts of sexual and indecent assault against the complainant - sentenced to seven years imprisonment with a four year non-parole period - whether sentence manifestly inadequate - failure to assess properly the objective seriousness of the offences - failure to recognise the significance of the standard non-parole period - whether residual discretion to decline to interfere with inadequate sentence

CRIMINAL LAW - sentencing - Crown appeal - offender's sentence reduced for assistance to authorities including undertaking as to future assistance - appeal on ground of failure to fulfil the undertaking - dispute as to alleged failure - proper approach to determining that issue CRIMINAL LAW - sentencing - application for leave to appeal against sentence by offender - judge nominated maximum penalty as starting point - no basis to support imposition of maximum penalty

CRIMINAL LAW - application for extension of time to give notice of appeal against conviction and application for leave against sentence - where application for extension of time not opposed - where affidavit supporting extension of time unsatisfactory - discretionary power to extend time limit to be exercised having regard to the interests of justice in the case CRIMINAL LAW - appeal against conviction - "context" evidence - where evidence admitted of poor relationship between applicant and complainant - where evidence not of prior sexual or other assaults against the complainant - whether trial judge erred in failing to give specific direction as to limited use to which evidence could be put - Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 137 CRIMINAL LAW - appeal against conviction - where jury failed to reach unanimous decision on some charges - where trial judge gave majority verdict direction - where failure to examine juror on oath before giving direction - Jury Act 1977 (NSW), s 55F(2)(b) CRIMINAL LAW - application for leave to appeal against sentence - whether fact that sexual assault occurred in home aggravating factor when applicant and complainant resided together at the relevant time - Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb) CRIMINAL LAW - where aggregate sentence to be reassessed - Court to re-exercise discretion to form its own judgment as to appropriate aggregate sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

CRIMINAL LAW - sentencing - offence of cheating or defrauding being a director of a company - where offender holding himself out as a financial advisor - whether open to have regard to abuse of a position of trust as an aggravating factor

TORTS - motor vehicle accident - notice of claim - claim not made within six months of accident - primary judge erred in addressing period of delay after the claim was made - whether appellant had "full and satisfactory explanation" for delay - Motor Accidents Compensation Act 1999 (NSW), s 73

COMMERCIAL LAW – Personal property securities - (CTH) Personal Property Securities Act 2009 - competing priority of interests – requirement for security agreement to be evidenced by writing signed by grantor or adopted or accepted by grantor

Criminal law - defence costs after nolle prosequi - relevant considerations

TORTS – negligence – whether acoustic engineering advice provided by defendant negligent – whether plaintiff contractor relied on advice when installing insufficient material in breach of head contract – where reliance required contractor to prove what non-negligent advice would have been and what it would have done had it received non-negligent advice – whether claim apportionable under Civil Liability Act 2002 (NSW), Pt 4 – plaintiff who contributes to its own loss not a “concurrent wrongdoer” – whether plaintiff contributorily negligent TRADE PRACTICES – claim for damages under Trade Practices Act 1974 (Cth), s82 for breach of s 52 – whether advice given by defendant misleading or deceptive – whether plaintiff contractor relied on advice when installing insufficient material in breach of head contract – whether claim apportionable under Trade Practices Act 1974 (Cth), Pt VIA – plaintiff who contributes to its own loss not a “concurrent wrongdoer” – whether plaintiff contributorily negligent DAMAGES – where plaintiff settled claim brought against it by head contractor for breach of head contract – where plaintiff claims cost of settlement against defendant under contractual indemnities – causation – whether negligent or misleading or deceptive advice caused plaintiff to enter into settlement agreement – Civil Liability Act 2002 (NSW), s 5D – s 5D not applicable to claims under Trade Practices Act 1974 (Cth), s 82 but words “by conduct of another” require a causal connection – whether s 5D applies to claim under contractual indemnity not clear and depends on construction of indemnity provisions – causation in this case dependent on reasonableness of settlement whichever test of causation applied DAMAGES – where plaintiff settled claim brought against it by head contractor for breach of head contract – where plaintiff claims cost of settlement against defendant under contractual indemnities – whether settlement reasonable – whether amount paid pursuant to settlement reasonable in the circumstances – whether appropriate that defendant be liable for the full extent of the settlement where only causally responsible for part of it – Civil Liability Act 2002 (NSW), s 5D(1)(b) – court to determine what would be a reasonable settlement when actual settlement unreasonable CONTRACT – where negligent advice in breach of agreement between plaintiff and defendant – whether plaintiff estopped from asserting breach of contract based on common assumption – whether plaintiff breached implied term that parties cooperate – claim statute barred by Limitation Act 1969 (NSW), s 14 where breach occurred in 2003 and proceedings commenced in 2011

EQUITY – interlocutory injunctions – freezing orders – where order sought to guard against GST and capital gains tax liabilities – where there is an appreciable risk that the company would not meet its liabilities if freezing order is not made – held, freezing order should be made.

EQUITY – interlocutory injunctions – freezing orders – whether freezing order should be made to preserve assets to meet claims under share sale agreement – where claim relates to forecast profits under the agreement – where potential GST liability may be payable – held, freezing order should not extend to forecast profits, but should include potential GST liability.

COSTS - damages claim against builder for rectification of defective works - proceedings settled prior to hearing - competing claims for costs - whether conduct of builder in failing to agree to owner's proposal for settlement was reasonable - whether settlement a compromise or capitulation by builder - whether costs orders should be made - turns on facts - no question of general principle

[COMMERCIAL ARBITRATION] - where commercial arbitration agreement to refer certain disputes to arbitration - whether arbitral tribunal has power under s 17 of the Commercial Arbitration Act 2012 (WA) or s 17 of the Commercial Arbitration Act 2010 (NSW) to make an order for preliminary discovery of the kind in Uniform Civil Procedure Rules 2005 [PRELIMINARY DISCOVERY] - whether an application for preliminary discovery is a "dispute" within the meaning of the commercial arbitration agreement - whether parties should be referred to arbitration under s 8 of the Commercial Arbitration Act 2012 (WA) or s 8 of the Commercial Arbitration Act 2010 (NSW) [PRACTICE & PROCEDURE] - application for a stay of application for preliminary discovery

EQUITY - trust and trustees - charitable trust - scheme required application of funds for general purpose of encouraging, assisting and promoting nursing education - application to amend scheme to meet changes in the nursing profession and nursing education since 1992 - cy pres scheme under s 9 Charitable Trust Act 1993 - turns on facts - no question of general principle

COSTS - whether costs should follow the event - whether the proceedings brought in the public interest

COURTS AND JUDGES – application for disqualification on basis of apprehended bias for re-trial after appeal (pre-judgment arising from previous sentencing in same matter) - motion that matter not be allocated to previous trial judge – application dismissed – principles discussed – mere allegation of previous error insufficient

CRIMINAL LAW - application for judge alone opposed by Crown - issue of mental illness only - conflict in expert evidence - indisposition of one of experts - test of "interests of justice" satisfied

CRIMINAL LAW - SENTENCE APPEAL - young offender - intellectual disability - ADHD - relevance to sentence - whether judge erred in failing to take into account in assessing moral culpability - absence of direct evidence before District Court - whether judge erred in drawing inferences from agreed facts

APPEAL - sentencing - aiding and abetting aggravated robbery - whether error in treatment of commission of offence in company as aggravating factor - Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) - principal in the second degree, Osland v The Queen [1998] HCA 75 - appeal upheld APPEAL - appeal against severity of sentence - whether sentence manifestly excessive in light of the applicant's subjective case - R v Henry [1999] NSWCCA 111 - sufficient 'special consideration' already granted - appeal dismissed APPEAL - sentencing - parity, whether legitimate sense of grievance when sentence considered in relation to co-offender's sentence - role in offence - appeal upheld - applicant re-sentenced

CRIMINAL LAW - appeal against interlocutory judgment or order - Criminal Appeal Act 1912, s 5F - appeal from dismissal of application for permanent stay STAY OF PROCEEDINGS - permanent stay of proceedings - abuse of process - whether proceedings commenced or maintained mala fides - compelled questioning under the Taxation Administration Act 1996, s 72 - whether information or evidence obtained pursuant to s 72 can be used for the purposes of a prosecution under a taxation law only STAY OF PROCEEDINGS - permanent stay of proceedings - abuse of process - whether proceedings commenced or maintained mala fides - compulsory questioning under the Taxation Administration Act 1996, s 72 - whether officers had intention to trick, deceive or mislead CRIMINAL LAW - offences - perverting the course of justice - Crimes Act 1900, s 319 - meaning of "course of justice" - conduct prior to invocation of the jurisdiction of a court CRIMINAL LAW - right to silence - privilege against self-incrimination - whether abrogated by Taxation Administration Act 1996, ss 72, 82, 84 and 85 - implied abrogation - permissible use of information obtained in compelled interview EVIDENCE - admissions - Evidence Act 1995, s 90

CRIMINAL LAW - appeal - conviction - whether miscarriage of justice - evidence admitted - evidence linking accused with other offenders found guilty - publicity before trial - publicity not directly related to accused - relevancy of evidence - probative value of evidence CRIMINAL LAW - appeal - conviction - whether miscarriage of justice - evidence admitted - operation of co-conspirators' rule - whether evidence admissible only if made in furtherance of conspiracy - operation of s87(1)(c) Evidence Act 1995 (NSW) CRIMINAL LAW - appeal - conviction - whether primary judge erred in refusing to discharge jury upon application - crown consented to discharge - whether jury lost its objectivity CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - identification evidence - assessment of probative value - impermissible to consider credibility or reliability of witness when assessing probative value CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - whether evidence tendency evidence - s 97 Evidence Act 1995 (NSW) - evidence of state of mind - different from evidence of conduct - not necessarily a series of intermittent events, feelings or ideas - difference between facts to be proved by tendency evidence and inferences drawn from circumstantial evidence CRIMINAL LAW -appeal - conviction - whether primary judge erred in refusing separate trials - consideration of prejudicial effect evidence of one accused had on others - effect of terrorist activity subsequent to decision to refuse separate trials CRIMINAL LAW - appeal - conviction - whether primary judge erred in admitting evidence - gruesome imagery - whether erred in assuming material had been accessed by accused - inference of possession of large quantities of material - relevance of emotional responses from jury upon viewing evidence CRIMINAL LAW - appeal - conviction - whether primary judge erred in refusing to dismiss charge of conspiracy - s 11.5(6) Criminal Code 1995 (Cth) - exercise of judicial discretion - no disadvantage or injustice identified - alternative of joint criminal enterprise of multiple substantive offences - whether charge of conspiracy was an added layer of complexity CRIMINAL LAW - appeal - conviction - whether miscarriage of justice - Crown prosecutor's final address - invitation to jury to draw inferences - whether necessary evidentiary basis for an inference to be drawn existed - absence of complaint - adequate directions as to the drawing of inferences - whether invitation to jury reversed the onus of proof - rhetorical questions - whether rendered trial unfair - consideration of context, framing and number of questions CRIMINAL LAW - appeal - conviction - whether primary judge erred in direction - characteristics of terrorist act - s 100.1(1) and (2) Criminal Code 1995 (Cth) - whether direction implied "advocacy, protest, dissent or industrial action" had to be "legitimate" or "genuine" - context of oral direction CRIMINAL LAW - appeal - conviction - whether verdict unreasonable - consideration of evidence - whether open to the jury to convict accused as participant in conspiracy - whether evidence established co-conspirators shared a common goal CRIMINAL LAW - appeal - sentencing - whether primary judge erred in sentencing of accused in comparison to sentences for co-accused - principles of parity - level of criminality relatively similar to other accused - distinctive features identified by primary judge CRIMINAL LAW - appeal - sentencing - whether primary judge's factual findings justified - whether evidential basis to draw inferences CRIMINAL LAW - appeal - sentencing - whether primary judge considered element of offence as aggravating feature of offence - placing primary judge's comments in context - identification of distinctive features of offending CRIMINAL LAW - appeal - sentencing - whether sufficient weight given to custodial conditions and cultural isolation - weight dependent upon other factors - exercise of discretion - whether error shown CRIMINAL LAW - appeal - sentencing - whether sentence manifestly excessive - nature of offending - conspiracy to do acts in preparation of a terrorist act - interrupted before harm - no target selected - damage to property not to people - acts likely to endanger lives of innocent members of the public CRIMINAL LAW - appeal - sentencing - whether primary judge considered cultural practice as aggravating feature - whether belief that obliged to engage in acts of terrorism to defend religion is a form of cultural practice CRIMINAL LAW - appeal - sentencing - whether primary judge erred in assessing prospects of rehabilitation - consideration of implications of conviction for conspiracy and evidence for conspiracy when assessing prospects of rehabilitation and state of mind of accused CRIMINAL LAW - appeal - sentencing - whether primary judge erred in assessing prospects of rehabilitation - significance of failure of accused to give evidence - importance of mental element of offence - whether primary judge considered youth of accused CRIMINAL LAW - appeal - sentencing - whether primary judge erred in sentencing of accused in comparison to sentences for co-accused - principles of parity - significance of nature of offence - sentenced for participation in conspiracy - specific acts of co-conspirators attributable to accused - significant level of criminality - differences reflected in sentence

CRIMINAL LAW - appeal against conviction - murder - joint trial - whether separate trial should have been ordered - application for separate trial not made - whether miscarriage of justice - cross-examination of appellant about character without leave - factual error made by counsel - whether miscarriage of justice - appeal dismissed

PRACTICE - fresh evidence included in appeal books and relied on by appellant - Court's attention not drawn to fact that materials not before primary judge - no impact on ultimate outcome - obligations of litigants and their advisers to the Court - whether further steps should be taken to investigate the matter

TORTS - damages - plaintiff injured when ceiling panel fell on his head while on a cruise ship - whether primary judge's reasons engaged with the plaintiff's medical case - whether reasons sufficient APPEAL - new trial - whether substantial miscarriage of justice

LEGAL PRACTITIONERS - removal from roll of local lawyers - application to have lawyer's name removed from roll - where lawyer convicted of criminal offences including aggravated sexual assault - where lawyer denied that he committed the offences of which he was convicted, both at trial and at sentencing hearing - whether of good fame and character - whether guilty of professional misconduct - whether presently a fit and proper person - Legal Profession Act 2004 (NSW), s 32

SUCCESSION – administrators and executors – application for judicial advice – whether administrator justified in entering into contract for the sale of land to particular purchasers – whether entering into contract is based on the reasonable judgment of the administrator following a diligent process of marketing – held, entering into contract was justified.

CRIMINAL LAW - sentence – offender convicted of manslaughter - joint criminal enterprise - juvenile offender - finding of special circumstances - variation to statutory ratio for non-parole period - direction that the offender serve as a juvenile offender until the day upon which he attains the age of 21 years

PROCEDURE - costs - general rule that costs follow the event - whether reason shown to depart from general rule - orders sought by first and second defendants against plaintiff for costs on indemnity basis - offers of compromise - whether there was a genuine offer of compromise - whether rejection of offer by plaintiff was unreasonable - whether circumstances otherwise justify order for costs against plaintiff on indemnity basis.

PROCEDURE - costs - general rule that costs follow the event - whether reason shown to depart from general rule - orders sought by first to third defendants against plaintiff for further costs on indemnity basis - whether circumstances justify order for costs against plaintiff on indemnity basis.

EQUITY - equitable remedies - injunction - application for extension of freezing order under Uniform Civil Procedure Rules 2005 (NSW) rr 25.11 and 25.14 - whether applicant has a good arguable case - whether there is a danger of disposal of assets such that if applicant succeeds it will not be able to have its judgment satisfied - discretionary considerations - whether freezing order should be continued.

CRIMINAL LAW - application for referral to the Court of Criminal Appeal pursuant to s 78 Crimes (Appeal and Review) Act 2001 - whether doubt or question as to conviction - prior application and prior petition - multiple convictions - all but 2 convictions earlier quashed by Court of Criminal Appeal - fabricated evidence by prosecuting officer - whether remaining convictions affected by the same wrongdoing - issue already considered by Court of Criminal Appeal - further evidence - whether sufficient to raise a doubt - application refused

Criminal law sentencing - murder - joint criminal enterprise - contract killing

LAND AND ENVIRONMENT - case stated by Land and Environment Court to Court of Criminal Appeal - development consents granted under previously operative environmental planning instruments authorised use of subject property for "stables" - respondent charged with using property for purpose not authorised under the current instrument of conducting horse transport business - whether use of property for horse transport business was authorised by historic consents - whether charge was defeated by authorisation of part of actual use of property - authorised use of stabling did not cover whole of use to which property was put

CRIMINAL LAW - appeal against sentence - dangerous driving occasioning death - whether sentencing judge erred in finding that the applicant's conduct was not a case of momentary inattention

CONTRACTS - general contractual principles - construction and interpretation of contracts - where local council signed agreement with mining company for rates before land valuation was obtained - whether primary judge erred in finding that the agreement as to rates was not authorised by, or was inconsistent with, the Local Government Act 1993 (NSW) - whether the primary judge erred by not holding that the Local Government Act 1993 (NSW) authorised the agreement as to rates ADMINISTRATIVE LAW - fetter on abdicating exercise of discretionary power by contract - whether primary judge erred in finding that execution of the Road Agreement was ultra vires of the local council's power PROCEDURE - costs - appeals as to costs - discretion - where local council signed agreement as to rates and then successfully argued that the agreement was invalid - whether primary erred in exercise of discretion in allowing the council their costs

CRIMINAL LAW - murder - special hearing where accused found unfit to be tried - accused alleged to have murdered 6 month old daughter by deliberately drowning her - where accused held a belief that her daughter had a genetic abnormality - evidence of accused expressing a desire to rid herself of her daughter - evidence of absence of affection by the accused towards her daughter - evidence of lack of bonding between the accused and her daughter - evidence of expressions by the accused of resentment regarding the birth of her daughter - evidence of accused having accessed internet articles regarding death of infants, drowning and sudden cardiac death - Crown case circumstantial - where defence of mental illness not available - elements of murder established CRIMINAL LAW - murder - infanticide - where evidence that accused had a disturbed mind as a consequence of prodromal symptoms of schizophrenia at the time of the commission of the offence - whether that disturbed mind was by reason of the accused not having fully recovered from the effect of giving birth to her daughter - where the expert evidence was that the accused's disturbed state was referable to a number of factors - onus of proof - infanticide negated CRIMINAL LAW - murder - partial defence of substantial impairment - where impairment made out - where impairment not so substantial as to warrant liability for murder being reduced to manslaughter EVIDENCE - Lies - Consciousness of guilt - Where accused gave conflicting accounts of events surrounding the death of her child - Where medical evidence supported a conclusion that provision of conflicting accounts was a manifestation of disturbed mind - Whether evidence should be regarded as lies exhibiting a consciousness of guilt WORDS AND PHRASES - "effect of giving birth"

DEFAMATION – pleadings – objections to imputations on the grounds of form and capacity

PRACTICE AND PROCEDURE – application to amend pleadings – no question of principle

DEFAMATION – publication – television news item including material previously published by a journalist in a newspaper article – where journalist not employed by the television station – plaintiff attempting to hold the journalist liable as a publisher of the whole of the television news item – principles stated in Webb v Bloch – whether particulars capable of establishing claim on those principles

PROCEDURE – cross vesting – Supreme Court of Western Australia – extra-territorial jurisdiction – defendants in China – whether proceeding is pending when not all defendants have been served – service on all defendants not essential to cross-vest – whether in interest of justice to cross-vest proceedings

PROCEDURE - civil - judgments and orders - application for summary judgment - application granted EQUITY - equitable remedies - equitable compensation - where defendants caused goods and services to be supplied to plaintiff at inflated rates and shared in profits - where bribes received by first defendant employee of the plaintiff formed part of loss suffered by plaintiff - whether restitution of bribe and equitable compensation for loss suffered are cumulative or alternative remedies - whether recovery of bribe and receipt of full equitable compensation would involve double recovery

CRIMINAL LAW - SENTENCE - manufacture of a large commercial quantity of methylamphetamine - clandestine laboratory in suburban premises - weapons and firearms charges - aggregate sentence - whether offence involved a grave risk of death to another person - death of co-offender in course of manufacture - whether aggravating feature - whether profit motive and lack of regard for public safety aggravating features - offender a middle aged woman of good character - limited period of involvement - balancing consistency of punishment against individual justice

CORPORATIONS - winding up - winding up voluntarily - application by liquidators for special leave to distribute surplus of assets in the liquidation of company and approval for remuneration - where no creditors of company have been identified - where company has a sole shareholder - whether special leave should be granted to liquidators to distribute surplus assets of company - whether requirement for schedule of contributories to be annexed to order authorising distribution should be dispensed with - whether retrospective approval should be granted for liquidator's remuneration in relevant period - whether prospective approval should be granted for liquidator's remuneration in relevant period.

SUCCESSION - FAMILY PROVISION - Plaintiff makes claim for a family provision order - No dispute as to the Plaintiff's eligibility as a person with whom the deceased was living in a de facto relationship at the date of his death - Defendant is an adult child of the deceased by a prior marriage to whom administration of the deceased's Will granted (with the Plaintiff) - Some provision made in the Will of the deceased for the Plaintiff - Whether provision adequate and proper - Whether family provision order should be made and, if so, the nature and quantum of the provision to be made

WILLS - informal testamentary document - alterations made to draft of existing will - document dated and signed by testator - testator aware of formal requirements for execution of wills - informal document not found with earlier wills - whether testator intended document to form his will - Succession Act 2006 (NSW) s 8(2)

CIVIL LAW - professional negligence - strike out application - whether proceedings are statute barred pursuant to s 14 of the Limitation Act 1969 - whether defendants are protected from suit by the advocate's immunity - contingent analysis - whether the question of the application of the advocate's immunity should be considered as a separate and preliminary issue

EQUITY - Property - Application under section 66G of the Conveyancing Act - Application for appointment of trustees of sale prior to final hearing - Where the party resisting sale contends that the co-owner holds his share of the property on trust for the party resisting sale - Where the defendant seeks to obtain by way of interlocutory application the final relief sought in his cross-claim

CRIMINAL LAW - appeal against sentence - aggravated break, enter and steal - applicant has a terminal illness

JURISDICTION - Court of Appeal - Supreme Court Act 1970, s 17 - Whether Court of Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act - Whether interlocutory order is part of proceedings JURISDICTION - Court of Criminal Appeal - Criminal Appeal Act 1912, s 5F - Whether Court of Criminal Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act - Whether decision under Costs in Criminal Cases Act is interlocutory PRIVILEGE - client legal privilege - applicability of Evidence Act 1995, ss 118 and 119 - where evidence not adduced PRIVILEGE - client legal privilege - waiver - imputed waiver - whether conduct was plainly inconsistent with maintenance of confidentiality AGENCY - implied or apparent authority - whether authority to compromise proceedings carried authority to waive privilege